Cases: what are they, why do they matter, where to find them, how to read them.
If you didn’t know already, once your first year law classes start you’ll realise that law professors, law students, law clerks, legal librarians, lawyers and judges, in fact everyone involved with the law, is very interested in “cases”.
Until you start law school you probably weren’t very interested in cases and likely would have never read one. You may not be sure what they are. That needs to change.
As cases quickly become so important to first year law students and then take up so much of your time, an outline of the main points and important facts about cases will let you approach the first days and weeks of first year law more confidently when all of the issues and facts about cases will be introduced to you in much more detail.
What are Cases and Why are They so Important?
The law in Canada is made up of two parts or primary sources. The first part is legislation, which are the written laws having received the consent of Parliament, the Senate and the Crown.
The second part or primary source of the law is case law.
Case law is made up of the written decisions of judges in court cases and tribunals. Case law comes from all levels of courts in Canada, but all cases are not treated equally.
In the common law in Canada, judges must follow the principle of stare decisis, which requires that judges follow the previous rulings (which are referred to as precedents) of other judges in higher courts in their province or territory and the Supreme Court of Canada, if that previous ruling was on the same issue.
The principle of stare decisis and following precedent means that the law should be applied consistently throughout Canadian Courts.
Decisions (or rulings) which have been given by judges who are from the same level of court or from other provinces or even from other jurisdictions don’t bind judges in the same way, but they can assist judges in reaching a decision.
When reference is made to the body of case law in a specific area or on a specific issue, it is comprised of these decisions.
Reference will be made to “leading cases”, which are those decisions that have been cited (or specifically referred to) and followed in subsequent cases. In Canada decisions of the Supreme Court are binding on all other Canadian courts unless the Supreme Court’s decision is distinguished.
When a case is distinguished, it means a court has decided that the holding or legal reasoning of a precedent case will not apply due to materially different facts between the two cases.
Where are Cases Found?
Cases are referenced and found in a number of sources.
References to cases and case law are found in secondary sources such as textbooks that will refer to cases to help explain issues of law. Journal articles will refer to cases in both the article itself and in the footnotes for the same purpose.
Summaries of cases can be found in both hardcopy and online resources.
These include encyclopaedias and topical case reporters that will be organised by legal topic or include indices by subject and case name. Legal digests are also arranged by topic and will provide summaries of important cases.
The full text of cases can be found using online legal databases, which can be searched by keyword, subject or case name. Digests also help to locate cases, as they will be summarised and organised by subject and with similar cases. The case citation or link to the full text of the case will also be provided.
The Canadian Abridgment, which is available online and in print, includes digests of thousands of cases from 1803 onward and unreported cases from 1986 for the common law provinces.
Reported Cases and Unreported Cases – What’s the Difference?
Cases are either reported or unreported, which will determine where the full text of the decision will be found. Reported judgments have been selected to be published (or reported) in one of the case reports (which are also called case reporters or law reports) because they will have an impact on or change the law in some way. You can usually tell that a case has been reported by its citation.
Unreported cases they simply apply the law rather than adding anything new to the common law and while they have not been included in a case report, they are still valid and may be cited as authority for the position a party in an action may be taking. These cases are found online in commercial databases, the court’s website or on CanLII.
A Quick Note on Noting Up Cases
"Noting up" means verifying whether a particular case is still relevant and that it has not been reversed on appeal, or if it has been criticized or overruled by subsequent cases. You will learn more about noting up cases and be taught the details of how to note up a case, but a few words on this point now so that it is one you are familiar with when it first comes up.
Noting up a case may also lead you to find other, more recent cases dealing with similar facts or principles by following the chain of cases you are noting up (for example, you note up Case A and find out that it was relied upon for Case M; you then note up Case M and find out it was relied upon for Case T; and you then note up Case T, and so on).
Cases can be noted up online by using the Quickcite feature of LexisNexis/Quicklaw or the Keycite feature of Westlaw Canada which can provide slightly different results.
Noting up of cases in print can be done by using Canadian Case Citations which provides an alphabetical list of cases and the history of the case, such as whether it has been appealed and if it has been considered in other cases.
Cases and Casebooks
You will probably have between 20 and 50 pages of reading for each class, each week, but fortunately, you won’t have to find the cases assigned as reading. They will usually be found in your casebook.
Before law school, you would have used textbooks in studying a particular
subject, which would have included descriptions, explanations, instructions or directions about the topic. While there are some legal textbooks you will use, most of the teaching in law school is done using the casebook method, which, like so much at law school, is supposed to help you learn how to think like a lawyer.
Casebooks are a combination of textbook, scrapbook and professor’s personal journal, as rather than providing an explanation of the principle or legal doctrine in a particular area of law, a casebook contains excerpts from legal cases in which the law of that area was applied. They might also contain excerpts from law review or journal articles, editorial commentary, and other related materials to provide background for the cases.
When you read the cases assigned, you will be analysing and understanding the decision to what rule was applied and how the court applied it.
Most of the time, rather than the full decision, only an excerpt will be included
in your casebook which will range in length from a few sentences to many pages, (but usually not more than 5 to 10 pages.) Everything in the casebook is there for a reason, such as the cases which are famous because they are the sources of important rules of law. Cases might help illustrate the rationale for applying a particular rule. There will be new and modern cases, but first you will probably have to get through some of the old, archaic cases and their difficult language within which you have to uncover important legal principles.
Examples of casebooks can be found online and quite remarkably, the Bora Laskin Library at the University of Toronto (not my law school alma mater by the way, so no favouritism being shown) has an archive of casebooks which goes back to 1942. A bit of browsing at Bora Laskin Law Library - Casebooks: Free Texts: Free Download, Borrow and Streaming: Internet Archive can help you understand what casebooks look like and how they are set up.
Some Casebook Tips
Even if your casebook has been produced in the law school’s print department, new casebooks can cost a lot of money. Used casebooks are usually available through the law school bookstore or online from second and third year students. Your professor will tell you which previous year’s casebooks can still be used, with minimal additions, as the casebooks change as the law in the subject area evolves.
Electronic or online versions of the casebook might be available for a lower price, but you have to be able to reads and understand the cases electronically. The saving may not be worth the greater challenge for some people.
Most importantly, when the course is finished, try to sell your casebooks right away. You will not need them again and you could be quite happy to never see them again. If selling them is difficult or doesn’t appeal, offer to lend or give them to other students. You’ll feel like a hero.
How to Read Cases. (It’s not as obvious as you might think)
Reading cases is a three step process. Three easy steps, fortunately.
The first step is to read the case. (Duh! Obvious! I can hear you.) Reading the case means you’re not doing anything else at the same time, such as taking notes about the case and points that might go into a brief. That happens are the three steps are finished.
Reading cases can be a slow process at first, often because of the language and terms. In order to read the case you will have to look up any words or terms you don’t understand. An online and app legal dictionary will soon be a part of your life.
As the first step is to read the case, there is no other step you should take first, like giving in to temptation and googling the case first, just to save time and let you know what to look for. You don’t learn the law by saving time and avoid having to struggle through the difficult parts of a case. Being a lawyer requires reading and understanding cases. There’s no way around it.
The second step, after you’ve read the case is; start to read it again. This time however, you can mark the important parts of the case and start to make notes, in the margins or otherwise. If you’re a highlighter aficionado, you can highlight the parts of the case that you might need later for a brief.
After you’ve read the case for a second time, the third step is to read the case or any parts of it that are still unclear to you. If you don’t understand something go back and read again, focusing on the point that you need to clarify. Some cases will take more than three reads before they are completely clear.
(At this point, if things are not clear, you can give into the temptation of Google for some help. But do the hard work yourself first).